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2G case: Govt petition seeks verdict review

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CIOL Bureau
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NEW DELHI, INDIA: The central government on Friday moved the Supreme Court seeking review of its Feb 2 judgment striking down the "first come first served" policy for grant of 2G licences and cancelling 122 licenses. A policy does not become bad merely because the court holds a different view, it contended.

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Noting that the apex court held the policy flawed, the review petition said: "This is entirely contrary to the jurisprudence of judicial review, which does not permit a court to hold a policy decision to be flawed only because the court has a different view from that of the executive of what lies in public interest."

The petition said the government "had applied its mind to the merits of the policy consideration of increasing tele-density in semi-urban and rural areas and the need to maintain level playing field".

"The court would have had to consider that while the urban tele-density has risen from 27 per cent in 2001 to 161 per cent in 2005, the rural tele-density has increased from 1.7 per cent to 36 per cent during the same period, which is the rationale of the policy adopted in 2007."

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It said that the judgment, by Justice G.S. Singhvi and Justice A.K. Ganguly (since retired), had erred in striking down the 'first-come-first-served' policy as illegal because there is "an element of pure chance or accident" that it may be implemented in a wrongful manner, without considering that a policy cannot be struck down for all time because of a chance it will be wrongfully implemented."

Faulting the judgment holding that public auction was the only "fair and transparent" method to distribute natural resources and the government was duty bound to follow it, the petition said the court could not have come to this conclusion without examining the "vast range of methods other than public auction" for the allocation of natural resources.

It termed the conclusion and findings of the court on public auction of natural resources as "without reason".

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It said that the apex court, by its judgment, travelled beyond the limits of judicial review and entered the realm of policy making and did not apply its mind to policy considerations.

"Had the court applied its mind, it would have had to consider that in prevailing facts and circumstances at the time the policy was adopted, the policy of first-come-first-served may have been more advantageous to the state in maximizing revenue in the long term (rather than in the short term) by promoting growth and penetration of wireless services in semi-urban and rural areas," the petition said.

The government also contended that the Feb 2 judgment has failed to consider that the legality of a policy cannot be assailed on the ground that it has been implemented in an objectionable manner.

It described the judgment as "internally contradictory" as it held that the first-come-first-served policy was flawed because it did not adhere to the principle of equity while at the same time, the court acknowledged that the policy was based on twin principles of a level playing field between different players and the need to promote affordability and increased penetration of wireless services in semi-urban and rural areas.

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